Litigations are
all about bundle of Issues...
1.
Issues are crux of any litigation, and
they arose in every litigation, be it Writs, Contempt Petitions, Arbitration
Petitions, Criminal Petitions Consumer complaints, and so one, notwithstanding
the Courts are not formally framing them. In C.V. Joshi versus Elphinstone Spinning
Mills, reported in 2001 (Supp) Bom CR (2) 57, the Bombay high Court observed
that even in execution proceedings, the issues comes into play, though it is
not technically necessary to frame them.
2.
Issues are like asking or addressing the
right question, for the court to deal with; addressing the principal
contentions, if any, between the parties; and once that is done, the other
supplementary issues, either don’t survive, or if survive, they may be
addressed with greater clarity.
3.
As observed by the Apex Court in J.K.
Iron & Steel Company Limited, Kanpur versus The Iron & Steel Mazdoor
Union – AIR 1956 SC 231, “the only point
of requiring pleadings and issues, is to ascertain the real dispute between the
parties, to narrow down the area of conflict and to see just where the two
sides differ.
4.
Improper and unwarranted framing or
understanding / agitating of issues is probably the main reason for delay in
disposing of the cases, apart from causing unnecessary expenses to the parties
to the case.
5.
Each type of case has specific set of
issues that are to be decided, for, Issues springs from the law applicable to
the nature of case litigated. Courts addressing itself with the correct Issues
and laying down the foundation of the case, with proper issues is the key to
expeditious disposal of case.
6.
Further, the arising of issues does not depend
upon the pleadings of the parties. Like for example, so as to prevent collusive
litigation in family matters, the Court secures that litigation played is
genuine and not collusive. Similarly, in Ex-Parte decree / orders, the
Petitioner / Plaintiff has to prove his case, notwithstanding there is no
formal dispute to his case.
7.
Legally speaking, Issues arises when a
material proposition of fact or law is affirmed by one party and denied by the
other. The expression “material proposition”, it appears, stems from the
mandate of the applicable law to the facts of the case.
8.
Therefore, to ascertain the correct
issues involved in the litigation, it would be necessary to ascertain which of
the Statutes and respective provisions are applicable to the litigation at
hand. It is equally essential that there is sufficient pleading to support the
issues involved.
How to ascertain correct Issues in the
case
9. The
nature of Issues in each of the case would obviously depend upon the Reliefs
prayed / claimed for. And thus Issues arises when the material facts, legal and
factual, which need to be “proved” to claim the Reliefs, are expressly disputed
by the other side. If the other side does not dispute any of the material
proposition of fact, the Plaintiff / Petitioner is not required to lead
evidence in respect of proving of that material fact. [section 58 of Indian
Evidence Act, 1872]
10. Unlike
other kind of litigation, in Suits, the issues are formally framed. In the case of Makhan Lal Bangal Versus
Manas Bhunia, AIR 2001 SC 490, the Apex Court in Para 19 said – The
stage of framing the issues is an important one inasmuch as on that day the
scope of the trial is determined by laying the path on which the trial shall
proceed excluding diversions and departures therefrom.
The real dispute between the parties is
determined, the area of conflict is narrowed and the concave mirror held by the
Court reflecting the pleadings of the parties pinpoints into issues the
disputes on which the two sides differ.
The correct decision of civil lis
largely depends on correct framing of issues, correctly determining the real
points in controversy which need to be decided.
The scheme of Order XIV of the Code of
Civil Procedure dealing with settlement of issues shows that an issue arises when
a material proposition of fact or law is affirmed by one party and denied by
the other. Each material proposition affirmed by one party and denied by other
should form the subject of a distinct issue.
An obligation is cast on the Court to
read the plaint/petition and the written statement/counter, if any, and then
determine with the assistance of the learned counsel for the parties, the
material propositions of fact or of law on which the parties are at variance.
The issues shall be framed and recorded
on which the decision of the case shall depend. The parties and their counsel
are bound to assist the Court in the process of framing of issues.
The petition may be disposed of at the
first hearing if it appears that the parties are not at issue on any material
question of law or of fact and the Court may at once pronounce the judgment.
If the parties are at issue on some
questions of law or of fact, the suit or petition shall be fixed for trial
calling upon the parties to adduce evidence on issues of fact. The evidence
shall be confined to issues and the pleadings. No evidence on controversies,
not covered by issues and the pleadings, shall normally be admitted, for each
party leads evidence in support of issues the burden of proving which lies on
him.
The object of an issue is to tie down
the evidence and arguments and decision to a particular question so that there
may be no doubt on what the dispute is. The judgment, then proceeding issue
wise would be able to tell precisely how the dispute was decided.
11. Framing of Issues on the basis of vague Pleadings
of the Parties –
Where
the pleadings are vague and do not conform to the law of pleadings, as laid
down in CPC, the issues may not be framed. The Bombay High Court in a case
[2008 (6) BCR 788] before it, held that –
Appellant submitted that the plea raised
by the defendants was vague and on such a vague plea no issue of tenancy could
have been raised. Defendants had not given any particulars as to when the said
tenancy was created, by whom it was created and the area regarding which it was
created, and in the absence of such particulars, no issue ought to have been
framed and referred to the Mamlatdar.
When a vague plea is made by the
defendant contending that he is a tenant of the land, the Court should hesitate
to frame such an issue on such a vague plea, unless the defendant is able to
give particulars showing the time when the tenancy was created, the person by
whom it was created and the terms on which it was created. If the defendant is
unable to furnish the same, the Court should not raise an issue on a vague plea
that he, the defendant is a tenant on any particular piece of land. Normally
the rules of pleadings require that these particulars are the minimum
particulars which a man must furnish before he can request the Court to frame
an issue as regards the claim made for tenancy.
12. Specific denials in Written Statements
In
the case of Manoj A.S.Dhargalkar Alias Kulkarni Versus Taramati Harichandra
Salgaonkar – (2000) 4 BCR 508, the observation of Bombay High Court assume
great significance when it said –
Para 10: A mere vague recital that the suit is not
maintainable in law cannot give rise for framing of an issue as to the
maintainability of the suit. Likewise mere assertion in the written statement
that the defendants are in possession of the suit land since long or for many
years without any knowledge thereof to the plaintiffs and without claiming the
right of adverse possession does not warrant framing of issue on adverse
possession.
The averments contained in the plaint
which are not traversed in the written statement and as to which no issue has
been asked for are to be deemed to be admitted. If the party intends to make a
particular averment to be the subject matter of an issue in a suit, then it
must be specifically denied. Mere non-admission could not warrant the Court to
frame an issue in that regard.
It is well established that the Court is
not bound to frame issues suo moto on questions of fact where the parties do
not ask for the same. The omission to raise an issue on a point implies
abandonment of such point by the party.
In fact, Rules 3, 4 and 5 of Or.8 of
Code of Civil Procedure provides for an intergrated code dealing with the
manner in which allegations of fact in the plaint should be traversed and the
legal consequences flowing from its non-compliance. The written statement must
deal specifically with each allegation of fact in the plaint and when a
defendant denies any such fact, he must not do so evasively but answer the
point of substance. If the denial of a fact is not specific but evasive, then
the said fact is to be taken to have been admitted. In such an event, the
admission itself being proved, no other proof is necessary and the law in that
regard is well settled since the decision of the Apex Court in the matter of
Badat and Co. V/s. Eastern India Trading Co., AIR 1964 SC 538.
13. Even a smallest error in the framing of
issues may lead to the frustration of the rights of the parties.
In
the case reported in 2009 (6) BCR 857, the Court observed – The correct issue which should have been
framed is – Does Plaintiff prove that he
is in settled possession of the
premises. AND NOT Does Plaintiff prove that he is in lawful possession of the premises. In the latter case it will cause
confusion, as the question of title then crop in leading to obfuscation of the
matter.
14.
Issues, if properly understood, and
emphasized and stressed upon, may enormously reduce the length of the
litigation and would secure “justice” for the parties.
15.
This write up is inspired from the
Article authored by very Learned Colleague Advocate Shri
S.A. Ahmed, Bombay High Court, on the subject of “Issues”. He may
be contacted at ahmed_advhcbom@yahoo.com.
Thank you.
Sandeep Jalan
Advocate
Related Links
REDUCING
LENGTH OF LITIGATION
OBJECTIVE
APPROACH TO THE CASE / POTENTIAL LITIGATION AT HAND
FRAMING
/ DRAFTING OF SUITS / PLAINT
INSTITUTION
OF PETITIONS / COMPLAINTS (OTHER THAN
SUITS AND CRIMINAL COMPLAINTS)
Drafting
/ Institution of criminal complaint
PREPARING
ONESELF FOR FEARLESS ARGUMENTS BEFORE JUDGES / MAGISTRATES
SUBMISSION
OF WRITTEN ARGUMENTS / REJOINDER
Legal issues !!
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